Underneath the Golden Boy - Robson Hall Faculty of Law

40 Underneath the Golden Boy
or “matters patent to the senses.” 62 Sometimes “hate” material does fall into that
category. However, much or most material amenable to charges of being ”hate–
related” can involve “complex social and historical facts” 63 as well as broad
scientific, political, moral, or religious issues.
To the extent evidence can be helpful in resolving such issues; the evidence
is often expert evidence. Expert evidence is often highly controversial, and the
best expert evidence might not even be available to the parties in a particular
case, at least on an equal basis. Furthermore, the developments in the disciplines
which form the basis of the expert evidence (and indeed form the basis of many
of our social and scientific beliefs and policies) occur over the long-term, indeed
over decades, and sometimes generations and centuries. Evidence needed to
present a case (or even in development of a discipline) may not even be
available, known, or in existence under timely circumstances. Documents
needed for historical research or forensic evidence, for example, may be
“classified” for a long period, under the control of uncooperative governments,
or perhaps destroyed. 64 It is especially unfair to subject someone to legal
62
To borrow a phrase from McLachlin, J., (as she then was) speaking for the majority in R. v.
Zundel, [1992] 2 S.C.R. 731 at p. 748.
63
McLachlin, Ibid at 757. She was actually discussing the “false news” provision of the Criminal
Code rather than legislation specifically targeting “hate speech” or “group defamation.”
However the problems are equally applicable to such types of legislation.
64
It is relatively easy to prove the tragic historical reality of the Holocaust and the falsity of its
denial largely because the Third Reich was thoroughly defeated, Germany was occupied, and all
the relevant documentary evidence created by the Nazis themselves was retrieved. Such factors
are among those cited to support the prohibition of Holocaust denial, either as an independent
crime, or as a form of hate propaganda against the Jewish people. For arguments supporting
such prohibition and discussing the issue, see David Matas, Bloody Words: Hate and Free
Speech, (Bain and Cox Publishers, Winnipeg, 2000), Chapter 5, Holocaust Denial, pp. 58-66.
However, I respectfully suggest that such prohibition would be unwise for several reasons. It
could lead sceptics, despite all the evidence, to question the credibility of genuine Holocaust
research and writing on the assumption that their conclusions were coerced or preordained,
opposite viewpoints not being allowed. It might in the future deter even bona fide researchers
from dealing with Holocaust related topics if they believed that they could not freely “follow
the evidence wherever it might lead” or that potential conclusions might get them into trouble
with the law. It could lead to “backlash” and inter-group tensions, both generally and among
groups that have also suffered grievous persecution, but the existence or extent of which might
not be as clearly provable as the Holocaust. Perhaps, most importantly, it can be seen as a
precedent and lead to demands for prohibition of denial of other controverted or disputed
historical facts, expanding the interference with expressive and intellectual freedom.
We can look to French experience as an illustration of the last point. In 1990, the French
legislature enacted “…the so-called ‘Gayssot Act’, which amends the law on the Freedom of
the Press of 1881 by adding an article…[which]…makes it an offence to contest the existence
of the category of crimes against humanity as defined in the London Charter of 8 August 1945,
on the basis of which Nazi leaders were tried and convicted by the International Military